STATE v. STEVENS (2019)

On 24 October 2011, Defendant Johnathan Dale Stevens was indicted on charges of felony possession of marijuana, possession with intent to sell or deliver marijuana, and possession with intent to manufacture, sell, or deliver a Schedule I controlled substance. On 13 March 2012, Defendant pleaded guilty, pursuant to a plea agreement, to possession with intent to sell or deliver marijuana. The terms of the plea arrangement stated that Defendant agreed to testify truthfully against a co-defendant if called upon to do so, and the trial court would enter a prayer for judgment on the charge of possession with intent to sell or deliver marijuana. The trial court entered the prayer for judgment in accordance with the plea agreement. Additionally, the charges of felony possession of marijuana and possession with intent to manufacture, sell, or deliver a Schedule I controlled substance were dismissed.

On 27 February 2017, Defendant was indicted on charges of trafficking in opium or heroin, possession with intent to manufacture, sell or deliver a Schedule I controlled substance, and possession of drug paraphernalia. On 4 June 2018, Defendant pleaded guilty pursuant to a plea agreement to trafficking in opium or heroin. Pursuant to the terms of the plea arrangement, several other pending charges, including the other charges for which he was indicted on 27 February 2017, were dismissed. On 5 June 2018, the trial court entered judgment and sentenced Defendant to a term of 225 to 282 months in the custody of the North Carolina Division of Adult Correction. On the same day, the State prayed judgment on Defendant's 2011 conviction for possession with intent to sell or deliver marijuana. The trial court sentenced Defendant to a concurrent term of 4 to 5 months' imprisonment. Defendant gave notice of appeal in open court.

Counsel appointed to represent Defendant has been unable to identify any issue with sufficient merit to support a meaningful argument for relief on appeal and asks that this Court conduct its own review of the record for possible prejudicial error. Counsel has also shown to the satisfaction of this Court that he has complied with the requirements of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising Defendant of his right to file written arguments with this Court and providing him with the documents necessary for him to do so.

In accordance with Anders, we have fully examined the record to determine whether any issues of arguable merit appear therefrom. By virtue of his guilty plea, Defendant's right of appeal was limited to the sentencing issues set forth in N.C. Gen. Stat. § 15A-1444(a1)-(a2) (2015). Here, however, for Defendant's conviction for trafficking in opium or heroin, Defendant was sentenced for drug trafficking pursuant to N.C. Gen. Stat. § 90-95, rather than under Structured Sentencing. Thus, Defendant has no cognizable ground for direct appeal as to this conviction under N.C. Gen. Stat. § 15A-1444(a1)-(a2), (e). See State v. Saunders, 131 N.C. App. 551, 553, 507 S.E.2d 911, 912 (1998) (“The punishment range set out in structured sentencing ․ does not control the minimum sentence when an applicable statute, such as N.C. Gen. Stat. § 90-95 in this case, requires or authorizes another minimum sentence.”). As to Defendant's remaining conviction for possession with intent to sell or deliver marijuana, Defendant stipulated to his prior convictions and prior record level. Furthermore, Defendant was sentenced within the presumptive range for a Class I, Level II felony offender.

Accordingly, we find no prejudicial error, conclude that the appeal is wholly frivolous, and affirm the judgments entered by the trial court.

AFFIRMED.

Report per Rule 30(e).

ZACHARY, Judge.

Judges STROUD and BERGER concur.